Change the Vote HowTo

On may 18 a political agreement on a Common Position was reached, not yet a Common Position itself. This means that the vote cast on May 18 is a non-binding one [!1] and it can be changed unilaterally, even without asking for a new vote. After such a change, the votes have to be recounted to see whether a qualified majority still exists.

General

Article 3.6 of the Council's rules of procedure states:

"The provisional agenda shall be divided into Part A and Part B. Items for which approval by the Council is possible without discussion shall be included in Part A, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes."

I.e., something normally becomes an A item (= formality) on the agenda after all discussions were finished and when some kind of informal agreement was reached previously (e.g. in Coreper, or at a previous Council meeting in the form of a political agreement). Since such informal agreements have no juridical value, one is free to change his/her position between the time that agreement was reached and the time that the issue appears on the agenda of the Council for formal approval.

The rule above shows that it is possible to communicate this change of heart by of expressing an opinion "at the time of approval of these items". Note that this requires great care, since as soon as the Presidency asks whether everyone agrees on that item, one has to act immediately and state the vote has changed.

Additionally, since only a Common Position itself is juridically binding, a (qualified) majority must exist at the time it is agreed upon (the situation when the political agreement was reached is juridically irrelevant). Therefore, stating that your vote has changed always implicitly requires a recount of the votes (without opening a new voting session), to see whether the required (qualified) majority still exists. If it doesn't anymore and the Common Position were nevertheless adopted, it would be illegal and it could be challenged at the European Court of Justice on those grounds. [!2]

B-item

Instead of doing all of the above at a Council meeting, it is advisable to send a letter to the Presidency in advance, stating that the vote has changed and asking for the directive to be handled as a B item (an item which need more discussion). The reason is that turning a political agreement into a Common Position can occur at any Council meeting (e.g. the software patents position could be approved by a meeting on defense or fisheries). It is unlikely that the representatives at such meetings will know the intricacies of the software patents case. A B-item is however always handled by the responsible Council formation.

Asking for a change of an A-item to a into a B-item (by removing it from the agenda) is no problem, as Council's rules of procedure article 3.8 shows:

"However, an A item shall be withdrawn from the agenda, unless the Council decides otherwise, if a position on an A item might lead to further discussion thereof or if a member of the Council or the Commission so requests." [!3]

So if one informs the Council presidency that the position has changed and this change of heart might lead to further discussion (or if one simply asks for the item to be taken off the agenda), the item will be removed from the agenda "unless the Council decides otherwise" (i.e., a normal majority of the Council objects to removing it from the agenda). If it is removed, it will then probably return as a B-item at a future Council meeting, or be further discussed at Coreper. This way, one can avoid problems stemming from the item appearing on the agenda of a Council meeting on an unrelated topic.

Nevertheless, if the Council (with a majority) refuses any further discussions, the general method must be followed and all ministers and state secretaries attending Council meetings must be informed about this change of heart and the steps to follow. In both cases the change of the vote must also automatically be taken into account when checking whether the required (qualified) majority still exists.